The Domestic Emoluments Clause Returns To The Trump Presidential Library in Miami

During the first Trump Administration, the federal courts got a crash course in the Emoluments Clauses. Shortly after Trump was sworn in, progressive groups brought suit in New York, Maryland, and the District of Columbia. They argued that foreign and state governments that patronized Trump properties were giving unconstitutional emoluments to President Trump. Seth Barrett Tillman and I filed a host of amicus briefs at the District Court, Circuit Court, and Supreme Court level. However, the plaintiffs never sought a preliminary injunction or any sort of expedited relief. Indeed, despite the fact that they claimed these cases were urgent and the fate of the Republic turned on stoping this foreign influence, the plaintiffs repeatedly requested extensions and continuances. At the end of the day, the clock ran out. By the time the case made it to the Supreme Court’s merits docket, Trump was out of office, and the cases ended with a whimper.

Since Trump’s second term began, I have waited with baited breath for suits based on the Emoluments Clause, as well as Section 3 of the Fourteenth Amendment, our other scholarly interest. But nothing came. Zero. Zip. Nada. I suppose the legal resistance has bigger fish to fry with all the strategic litigation in the First Circuit.

Well, the Emoluments Clause is back. The Constitutional Accountability Center, which brought litigation during Trump 1.0, has sued President Trump for violating the Domestic Emoluments Clause. This case, however, does not concern businesses patronizing any current Trump property. Instead, the complaint alleges that the Miami-Dade Community College and the state of Florida granted Trump an unconstitutional emolument by gifting land in Downtown to be used for the Trump Presidential library. President Trump is the defendant, as well as the Trump Presidential Library, Governor DeSantis, Attorney General Uthmeier, and a host of other state officials.

In 2017, the Constitutional Accountability Center filed suit on behalf of Senator Blumenthal and other members of Congress. That theory of standing was doomed to fail. Nine years later, the Constitutional Accountability Center invoke another theory of standing that is doomed to fail.

Who are the plaintiffs in this case? There are two individuals who live near the planned location of the library in downtown Miami. They complain that the tower will block their view of Biscayne Bay, increase traffic, diminish their “quality of life,” and reduce the value of their property.

Another plaintiff is Sistrunk Seeds, also known as Dunn’s Farm, which wants to operate an “urban farm” in downtown  Miami. Dunn claims that it had worked with Miami Dade College in the past, and wanted to build a farm across the street from Biscayne Bay, but can’t because the land was given to teh library. There does not appear to be any contract or binding agreement–simply an expectation to have future discussions. The complaint admits as much: “The longstanding partnership between MDC and Dr. Dunn demonstrates that, at a minimum, MDC would have seriously considered Dunn’s Farm’s request for the land.” The farm also claims a “diversion of resources” theory of standing.

Finally, there is a student at Miami Dade College who wants to work on the non-existent farm. The complaint states, “The emolument at issue has quashed Ms. Salcedo’s opportunity to learn urban farming and nonprofit management skills on campus for academic credit.” Maybe she can claim standing based on some magical beans that could grow into a beanstalk as tall as the new Trump library?

On January 22, 2017, I wrote an early blog post critical of the theory of standing in CREW v. Trump. I was met with a swift reply by Laurence Tribe. Let’s see if anyone jumps on board this case.

Apart from standing, the Plaintiffs have a host of other jurisdictional hurdles. There is no cause of action. They are not within the zone of interest of the Domestic Emoluments Clause. They sued the President in his official capacity. And more. Plus the transfer of land is not an emolument. Seth and I have written on this topic.

As of yet, the plaintiffs have not sought a preliminary injunction. As they say, the process is the punishment.

These claims will not succeed, but there is a cost of losing, should this case ever make it upstairs. I can see six votes on the Supreme Court to kill diversion of resource standing, hold there is no implied cause of action for alleged violations of the Constitution, and eliminate any sort of “offended observer” standing based on seeing things that bother you. The plaintiffs here can radically set back civil rights law, all in a case that is doomed from the start. Wouldn’t it be better to never bring this case in the first place? Plus, the plaintiffs filed in unfamiliar territory. They will not be protected by jurists like Peter Messitte and Emmitt Sullivan, with appeals to the friendly Fourth and D.C. Circuits. I question the wisdom of this suit.